The UCLA Online Institute for Cyberspace Law and Policy

Obscenity & Child Pornography

• Obscenity (federal const. law)

  • In Miller v. California, 413 U.S. 15 (1973), the Supreme Court set out a three-prong test for obscenity. It inquired whether...

    (1) "'the average person applying contemporary community standards' would find that the work, taken as a whole appeals to the prurient interest";

    (2) it "depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law"; and

    (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

    •

    • Obscene As To Minors (U.S. Law)

  • In Ginsberg v. NY, 390 U.S. 629 (1968), the U.S. Supreme Court upheld the constitutionality of state regulations "adjusting" the definition of obscenity for minors.

    • The NY statute upheld by the Court contained the following terms:

  • "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:

    (i) predominantly appeals to the prurient, shameful or morbid interest of minors, and

    (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and

    (iii) is utterly without redeeming social importance for minors.

    •

    • Definitions - Child Pornography and Related Areas (federal statute)

    Under 18 U.S. Code Section 2256, the following definitions apply:

    1. minor means any person under the age of eighteen years;

    2. sexually explicit conduct means actual or simulated

    (A) sexual intercourse…[including oral or anal sex]…whether between persons of the same or opposite sex;

    (B) bestiality;

    (C) masturbation;

    (D) sadistic or masochistic abuse; or

    (E) lascivious exhibition of the genitals or pubic area of any person;…

     

    5. visual depiction includes undeveloped film and videotape, and data storedon computer disk or by electronic means which is capable of conversion into a visual image;…

     

    8. child pornography means any visual depiction, including any photograph, film, video, picture, or computer or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where

    (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

    (B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

    (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

    (D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct; and

    9. identifiable minor

    (A) means a person

    (i)(I) who was a minor at the time the visual depiction was created, adapted, or modified; or

    (II) whose image as a minor was used in creating, adapting, or modifying the visual depiction; and

    (ii) who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

    (B) shall not be construed to require proof of the actual identity of the identifiable minor.

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    sb: 31Jan. 1999